Medical marijuana: Richard Wainwright case shows 6 plant limit can expand, attorney says

Now that a dispensary ban has passed in Fort Collins, patients there will either have to go elsewhere for their medical marijuana or sign up with a caretaker who's ostensibly limited to six plants per person. But attorney Rob Corry says this limit isn't hard and fast -- and as proof, he points to the recent verdict on behalf of Richard Wainwright, who was found not guilty of felony cultivation of marijuana even though he'd grown more than 200 plants for nine patients.

"Over and over and over, we hear about this alleged six plant, two-ounce limit," Corry says. "We've heard it so many times that many people think it's true -- but it's not true. The constitution clearly says that within six, you're lawful, but you can have more than that if it's medically necessary. And that's the key."

According to Corry, the roots of the case stretch back to December 2009, "when my client's thirteen-year-old son was caught at school with supposedly 3.5 grams of marijuana that he'd retrieved from my client's ashtray in his room: roaches. And he also had what the prosecution called marijuana paraphernalia -- a can pipe like the kind we probably all used in junior high school, made from a Monster energy drink can. But then, the case metastasized from a brief junior-high-school suspension to a felony criminal prosecution in Adams County.

"They had seven detectives from the North Metro Drug Task Force come to my client's home. He let them in, gave them all the documents showing that he was a caregiver. He was completely open with them, answered all their questions, refused them nothing. And they took clippings from what they allege was 226 plants -- although we're not sure if that's the real count, since it's hard to assess what does and doesn't qualify as a plant. And then they prosecuted him in Adams District Court for felony marijuana cultivation and misdemeanor child abuse."   The prosecution argued that Wainwright had only nine patients, "because those were the ones the health department was able to confirm," Corry notes. "Our position is that he was a caregiver for more, but it ended up not mattering. Because the prosecution didn't have the evidence even with the nine to prove he was growing a medically excessive amount."

A photo of a typical home grow from the North Metro Drug Task Force.
A photo of a typical home grow from the North Metro Drug Task Force.

Why not? After all, simple math suggests that he could only grow 54 plants, and he had over four times that total, using the prosecution's calculations. But Corry points out that Wainwright "had some very, very sick patients who were using edibles and tinctures and lotions and topicals and various types of concentrates that require more plants to produce, as we established. And we also established that it was healthier for patients. We had testimony from the daughter of a woman who died of breast cancer in February of this year, and she told the jury about her mom rubbing anointing oil on her open, cancerous tumor -- and that it was the only thing that gave her relief.

"The jury also heard from patients in wheelchairs, elderly people suffering from severe medical problems. It was very moving testimony, and it showed what a giving person Rick is. The task force didn't find any cash -- it was a pretty modest, home-based operation. And they didn't find an ounce of finished product, because everything he was producing, his patients grabbed it right up."

In the end, the jury found Wainwright not guilty.

The decision isn't unprecedented. Corry points to the case of Jason Lauve, a medical marijuana patient who'd broken his back snowboarding in 2004. Years later, he was prosecuted in Boulder County for having too much weed -- two pounds, two ounces. But he was exonerated based on the "medically necessary" line in the state constitution.

Even so, Corry finds the Wainwright verdict noteworthy due in part to where the case was adjudicated. "I would call Adams County one of the three or four worst jurisdictions in the state as far as medical marijuana is concerned, in terms of waste of taxpayer resources and relentless pursuit of people who are not criminals," he says. "So this proves that the Colorado constitution applies statewide."

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Even so, Corry cautions against caregivers interpreting the decision as permission to grow as much weed as they'd like. "Obviously, it's safer to be within six plants per patient, and I'm not recommending you go above that unless there's a medical necessity," he says. "If Richard had six plants per patient, he wouldn't even have had to go to trial, and the judge would have dismissed the case right off the bat. But I'm hoping this case will help get the word out that there really isn't an absolute six-plant limit."

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More from our Marijuana archive: "Med. marijuana 3rd-party testing okay despite Full Spectrum's shutdown, says CannLabs."


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